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Are you able to Stick to the Negotiations when it gets rough?

A court procedure does not ask of the sides to work together to find a solution. Both sides are encouraged to take starkly different starting positions and over time it is expected they will gradually move to the center which will produce a solution. When this doesn't happen a trial takes place and a judge imposes a solution.

The alternative dispute alternative relies on the premise the parties are motivated to find the solution. Discussions can be difficult, emotions can ride high, but the professionals entrusted with guiding discussions are trained in managing conflict while they navigate the inevitable difficult patches where disagreements over stark differences flare up. At its most basic level the value of the process becomes apparent as the parties remain at the table, entertaining options and remaining open to discussing openly with the other side. The parties control the process. The more they engage it, the more they see results.

Working together does not mean giving in to the other. It does require an effort to hear what the other is saying. Similarly when rough patches come up a side may be hard pressed not to walk out but remain at the table until a way out comes to light. On the whole, an alternative process will reach a solution. But sometimes it won't. There are no guarantees since the process depends so much on the parties and the baggage they bring to the discussions. But say no solution is reached or a partial one. This is not by any means a failure. If in the end parties have to go to court, often the alternative process helped to reduce the issues so significantly that the eventual costs for going to court are far less than otherwise would be the case.

Why is litigation so expensive

Litigation is a procedure made up complex procedural stages; each stage has its own rules giving rise to multiple legal strategies. It is a complex game that requires an extremely high level of expertise to play. The complexity is driven by the need for formal proofs calling on different areas of expertise. This is what imposes the high costs: the collection of evidence, the time to plan, prepare and then present it; the need for experts to explain and evaluate that evidence. Every step in the process has its formal rules.

Except for the most exceptional cases, it is difficult, if not impossible, to predict outcomes. As a result tensions run high and the risks for success or failure increases. It should not come as any surprise that as costs for going to court go up the number of self-represented litigants increase. Better than 50% of litigants in family court now represent themselves for the simple reason they cannot afford lawyers. But by going to court without professional help the litigant has put himself in an inferior position. So the question is why do self-representatives prefer to go by themselves to court rather than go by one of the out of court processes? 

While there are plenty of studies pointing to the family law court system breaking down under its weight, I have seen nothing suggesting why unrepresented parties are choosing a process for which they are not trained or have any experience in over one that is tailored to their needs and costs.

Are the costs for Alternative Procedures less

It's safe to say the costs for mediation and the collaborative process will be less than the traditional court. But saying it's less is not to be understood as being negligible. Costs are always relative, meaning what would be an expensive case in the traditional arena will probably be more expensive in the alternative one. But you have to compare the costs in one procedure with what they could be in the other.

Ultimately the costs in an alternative process, whether mediation or collaborative, will depend on how many meetings are needed to deal with the issues. Marathon full day sessions sometimes are not possible because parties wear out and get tired, options aren't immediately presenting themselves, impasses are reached at which point it's healthy to pause discussions and get both distance and perspective. All these factors affect costs. A process that requires 5 or 6 meetings will obviously be more expensive than 1 or 2 sessions. But you need to keep in mind that a separation that needs multiple sessions in the alternative process would likely produce a high cost scenario in a traditional court process, where the parties have to be mindful of their own costs plus the risk they pay for the other side's costs too.

In mediation the parties share the costs in some predetermined proportion. In the collaborative process while each party pays for their own lawyer the other professionals' costs are shared. Duplication on financials and reports, if needed, are avoided. So the incidental costs are radically reduced.

In simple cases where there are no complex assets and parties are parties are already predisposed to resolving parenting, the alternative environment that encourages consensus and settlement can reach a final agreement at a fraction of the cost of a traditional process.

For more information on how to select the legal process that works for you, please contact me [email protected] with specific questions relating to your particular situation. All inquiries are held in the strictest confidenc e and will be answered.

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